Even Trump Critics Agree Bragg’s Charges on Shaky Legal Ground

Former president Donald Trump pleaded not guilty to 34 felony counts of falsifying business records on Tuesday and has called Manhattan district attorney Alvin Bragg’s case against him “political persecution.” Now that the indictment has been unsealed, it’s not just Trump allies who have raised questions about the strength of Bragg’s legal argument.

Porn actress Stormy Daniels claimed in the final days of the 2016 presidential election that she had previously had a sexual affair with Trump. Trump’s former fixer, Michael Cohen, paid Daniels $130,000 to keep quiet about her claims. Bragg’s investigation centered on whether Trump falsified internal business records to conceal the reimbursement payments to Cohen as legal expenses. 

“From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects,” Bragg alleges in a statement of facts.

The document adds: “In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”

Bragg is trying to make the untested legal argument that Trump falsified the records in the service of violating federal campaign-finance law.

New York magazine’s Jonathan Chait writes: “The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge.”

“The legal deficiencies of Alvin Bragg’s indictment have been thoroughly litigated in the media,” he adds. “The case converts what would normally be misdemeanor charges of falsifying business records into 34 felony counts by arguing that $130,000 in hush money paid to Stormy Daniels was an illegal campaign expenditure and each record created for it was criminal.”

“To imagine this particular combination of campaign-finance charges and business-records enforcement as simply “the law” is wildly naïve,” he says. He goes on to accuse Bragg of wandering “directly into” the “criminalization of politics.” 

“Elected officials ought to be held to the same standard as other Americans. While their standing does not give them license to commit crimes, it also shouldn’t expose them to criminal liability that a regular person would never face,” he wrote.

Washington Post columnist Ruth Marcus called the unsealed indictment “disturbingly unilluminating” in answering the question of whether Trump violated New York law. “The theory on which [the indictment] rests is debatable at best, unnervingly flimsy at worst.”

“That is a scary situation when it comes to the first criminal charges ever lodged against a former president,” Marcus adds, concluding that any fears she had leading up the indictment about the indictment “were in no way allayed by Tuesday’s developments.”

Ahead of the indictment’s unsealing, the Washington Post editorial board warned last week that there is “cause for concern, and caution, ahead.”

Ian Millhiser, a senior correspondent at Vox, suggested there is “something painfully anticlimactic” about the indictment. 

“And there’s a very real risk that this indictment will end in an even bigger anticlimax. It is unclear that the felony statute that Trump is accused of violating actually applies to him,” he adds.

“But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.”

For Slate, Mark Joseph Stern says “Bragg’s legal theory is, if not convoluted, a fairly confusing effort to patch together disparate offenses into one alleged crime, carried out over 34 illegal payments. This is not at all the slam-dunk case that so many Democrats wanted.”

Meanwhile, former Democratic Representative Barney Frank of Massachusetts told Newsmax he believes it was a “mistake to bring that indictment.”

“It’s totally historic: Good in one way, bad in another, in my judgment,” Frank said. “I have always disagreed with those who said a president should not be subject to the criminal process – either when in office or afterward. I’m glad to see that people aren’t arguing that case, but I think it’s a bad indictment.”

“I don’t think it should have been brought,” he added.

CNN’s Van Jones said he doesn’t “take joy” in the indictment.

“I don’t like the prison system,” he said. “I don’t like what it does to people. I don’t like this process.”

“So I don’t take any celebration in seeing him looking that way,” Jones said of Trump, adding, “It doesn’t mean accountability is not owed.”

Republican Trump critics have expressed skepticism about the indictment as well.

John Bolton, Trump’s former national-security adviser who is considering his own 2024 challenge to Trump, said during an appearance on CNN that “as someone who very strongly does not want Donald Trump to get the Republican presidential nomination, I’m extraordinarily distressed” by the indictment.

“I think this is even weaker than I feared it would be,” he said, “and I think it’s easily subject to being dismissed or a quick acquittal for Trump.” 

“There is no basis in the statutory language to say that Trump’s behavior forms either a contribution or an expenditure under federal law,” he said.

Republican Senator Mitt Romney of Utah, for his part, said that while he believes Trump’s “character and conduct make him unfit for office” he believes Bragg “has stretched to reach felony criminal charges in order to fit a political agenda.”

“No one is above the law, not even former presidents, but everyone is entitled to equal treatment under the law,” he said. “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.”

New York Times columnist David French said he was “underwhelmed by Bragg’s case before the indictment.” He added: “I’m still underwhelmed. It’s not because of the facts. It’s because of the law.”

More from National Review

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